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Justice for All or for the "Elect"? The Utah County Probate Court, 1855-72

Utah Historical Quarterly

Vol. 48, 1980, No. 2

Justice for All or for the "Elect"? Utah County Probate Court 1855-72

The Government of the United States, founded upon a written constitution finds within its jurisdiction another government claiming to come from God—imperium in imperio ....

James B. McKean, Chief Justice of Utah Salt Lake Tribune, October 9, 1871

MUTUAL SUSPICION AND REPROBATION CHARACTERIZED the relationship between the United States government and the Mormon church during Utah's territorial era. The zone of contention centered upon such issues as the Mormon practice of plural marriage, the church theocratic political and economic order, and conflicting federal-territorial jurisdictional limits. Contributing to the discordant climate was an 1852 law enacted by the Mormon-dominated territorial legislature. This act conferred upon the county probate courts authority far in excess of their traditional powers to probate wills, administer estates, and provide for the guardianship of minors and the mentally ill.

Interpreting broadly the provision of the 1850 territorial Organic Act that established the judiciary and stipulated only that the authority of the probate court "shall be limited by law," the 1852 legislative assembly liberally granted the probate courts original jurisdiction in civil and criminal disputes. Except for the allowance that appeals of probate court decisions may be taken to district court, and a few other minor qualifications, the territorial legislators by their action empowered inferior tribunals with authority effectively concurrent with that of the superior district courts. An added consequence was that probate judges, who were elected by the territorial legislature and generally holders of leadership positions in the Mormon church, were granted powers in territorial affairs substantially equivalent to those vested in federally appointed district judges who were, with few exceptions, non-Mormon. This action by the Mormon legislators was cited by federal officials and other critics as a tactical maneuver on the part of the church to secure control of the territorial judicial system. By capitalizing on the natural sympathy and allegiance of its followers, the church, and especially Brigham Young, allegedly directed Mormon judges and jurors to manipulate judicial proceedings in a way that served the private interest of Mormons as well as the broader objectives of the church. Particularly strong were allegations that non-Mormons received unfair treatment at the hands of Mormon judges and jurors. Probate courts supposedly convicted the innocent if they opposed the Mormon cause and turned loose the guilty if they were brethren in the faith.

The purpose of this paper is to measure in part the validity of this charge of partisanship. Through an analysis of court documents, this article seeks an indication of whether or not the judges and juries of the Utah territorial probate courts administered impartial justice to both Mormons and non-Mormons who appeared before them.

Data for this study were collected from records of the Utah County Probate Court. Court documents were culled primarily for variables that are statistically classifiable and that demonstrate relative degrees of consistency and fairness in the court's treatment of Mormon and non-Mormon litigants.

All territorial civil and criminal actions considered by the court during four periods of its twenty-two-year tenure of civil and criminal jurisdiction were subjected to classification and analysis. Examined were the sum of all cases litigated during two-year periods: 1855-56, 1860-61, 1865-66, and 1870-71. The periods identified for study represent a random sample of all years that the court adjudicated civil and criminal disputes. Four periods were selected so that the data might reflect possible significant aberrations or trends in the court's behavior.

All litigants, jurors, and judges involved in the trial proceedings that took place during these years have been classified as Mormon and non-Mormon. Membership records of the Church of Jesus Christ of Latter-day Saints from wards and branches within Utah County served as the primary source for determining whether or not an individual was Mormon.

Following a brief review of the historical environment contributing to the controversy over the unusual authority enjoyed by the Utah territorial probate courts, this study attempts to address the issue of the court's fairness. To be considered first is the question of whether the number of Mormon judges and jurors was sufficiently great that Mormons acting en masse could have manipulated the outcome of judicial proceedings. Second, various procedural operations of the court are examined for possible proof that litigants anticipated and received partial treatment by Mormon judges and jurors. Finally, the judgments rendered are analyzed for potential evidence that the probate court's standard of justice was not equally applied to both members and nonmembers of the Mormon church.

This analysis lays no claim to conclusiveness. Such a study obviously is limited because objective measures cannot be applied to all aspects of the court's treatment of litigants. With few facts and other circumstances concerning the cases extant, it is impossible to determine if its pronouncements were truly fair and warranted by the evidence.

Additionally, if the court was regarded by some of its contemporaries as biased in favor of members of the Mormon church, it is conceivable that certain justified complaints against Mormons never were preferred in probate court. Perhaps some individuals were reluctant to press charges against Mormons because they predicted that Mormondominated courts would rule in favor of the accused. Obviously this study cannot measure how the court would have acted in cases it never heard.


For two decades the extensive jurisdiction of the Utah County Probate Court served as a source of friction between feuding camps of Mormons and federal officials. Mormons sided with the action of the legislators, claiming that without the conferral of these powers upon the probate courts the local citizenry would be denied the full protection of the law. Their contention, to some extent, stemmed from the fact that a few months prior to the passage of the controversial act, two of the three federally appointed judges fled the territory, the consequence of a bitter collision with the Saints. As a result, the administration of justice in Utah unquestionably was slowed until the vacancies were filled in 1853.

At least in part, the continuance of the unorthodox assignment given the probate courts must be attributed to the inadequate and problemridden territorial judicial system. The three judges assigned to each of the United States territories were far too few to handle the judicial business of their expansive districts. The legislators of Washington Territory were so frustrated by the deficiencies that in 1862 they complained:

. . . the existing state of the Districts and courts of this Territory consequent on an allowance of three Judges only, and the immense territory forming each district, for the holding of Court, works a grievance to the people tantamount to a denial of justice.

Defenders of the probate courts argued that deficiencies in the territorial court system, similar to those enumerated by the Washington territorial officials, hindered the administration of justice in Utah Territory. On June 2, 1874, Delegate George Q. Cannon, addressing the House of Representatives, contended that the inaccessibility of the district courts and their irregular convening compelled the Utah legislative assembly to establish alternate tribunals. He maintained that the two outlying district courts were in session less than two days a year and that the district court in Salt Lake City was "in session but a small portion of the time." He further claimed that some judges appointed "to the first and second districts never saw the places appointed for holding their courts." Without the extensive jurisdiction given the probate courts, citizens might resort to lynch law to punish crimes. However, even if the district courts held regular sessions, the distances in territorial Utah posed problems. He cited as an example the two thousand inhabitants of St. George who had to travel 120 miles to Beaver—a three-day journey— to transact business before the Second District Court. Cannon compared the inconvenience to a Boston citizen's being forced to transact business in Chicago.

Other towns in the Territory are similarly situated to that of Saint George, and, without local courts of some kind, they are wholly without protection by judicial authority in property or person. Under these circumstances, can it be said that the Legislature of Utah acted unwisely in conferring jurisdition on the probate courts? Would they not have fallen short of their duty had they neglected to throw around their infant settlements, so widely separated, such protection as the probate courts have afforded.

Critics of the probate court's extraordinary jurisdiction countered that the territorial legislature had gone beyond the sense of the Organic Act in so broadly defining the authority of the local courts. They accused the Utah legislators of usurping rightful powers of the district courts in order to shackle federal authority and dilute the influence of federally appointed judges, many of whom were regarded as unsympathetic or even hostile to Mormons and their unorthodox institutions.

Several judges assigned to Utah opposed the jurisdiction of the probate courts and aggressively sought to void their powers. Frequently, federally appointed judges ruled that the inferior courts had no province to adjudicate criminal and civil disputes. One such jurist was Cyrus M. Hawley. Presiding from the Second District Court in Beaver, Judge Hawley overturned a probate court decision on the grounds that the lesser tribunal had no jurisdiction in criminal matters. As a result of this ruling, Isaac L. Penson, who had been sentenced to two and a half years in the penitentiary for intent to murder Isaac Riddle, was released from custody.

Other judges took issue with the quality of justice delivered by probate judges and juries. Associate Justice W. W. Drummond accused the probate courts of imprisoning several individuals whose only crime was that they were anti-Mormon:

I charge the Mormons, and Governor Young in particular with imprisoning five or six young men . . . who are now in the penitentiary of Utah, without those men having violated any criminal law in America. But they were anti-Mormon—poor uneducated young men . . . indicted by a probate court, and most brutally and inhumanely dealt with, in addition to being summarily incarcerated in the saintly prison of the Territory of Utah.

The controversy over the legal dominion of these local courts finally swelled to such intensity that an act of Congress and a ruling by the U.S. Supreme Court were required to resolve the dispute. Enacted in 1874, the Poland bill annulled the extraordinary civil and criminal jurisdiction enjoyed by the Utah territorial probate courts for nearly a quarter of a century. Closely following the passage of the Poland bill, the Supreme Court in the case of Ferris v. Higley upheld this legislation by ruling:

. . . We are of the opinion that the one [act of the territorial legislature] which we have been considering is inconsistent with the general scope and spirit of the act [territorial organic act] in defining the courts of the Territory, and the distribution of judicial power amongst them.. .

By the high court's pronouncement that the territorial law empowering the probate courts went beyond the intent of Congress, the long debate over an unconventional facet of Utah's judicial system was ended.


The first effort of this analysis focuses on the allegation that the Mormon church commandeered the territorial judicial system by naming judges, packing juries, and staffing other important court offices with Mormons. Critics of the probate courts contended that probate judges were chosen from the leadership echelon of the church. Such judges were regarded by many as loyal first to the dogma and policies of the church and only second to the administration of impartial justice. Because of their ecclesiastical authority and prestige, Mormon judges were said to hold strong sway over Mormon jurors and court functionaries.

A review of listings of church leaders sustains, in part, this allegation. Of the seven judges who presided over the Utah County Probate Court during the years in which the court exercised extensive civil and criminal authority, six held high church office throughout their judicial tenure. An example of such an official was Aaron Johnson who during 1861 served both as a probate judge and Mormon bishop. It is likely that Silas Smith who presided over the probate court in Utah County from 1859 to 1861 was also a bishop. Other church officials who served simultaneously as judges include Isaac Higbee, probate judge from 1852 to 1856, and George W. Bean, who sat on the bench approximately seven years, from 1866 to 1868 and from 1870 to 1875. Both of these men were first counselors in the Utah Stake presidency while serving as probate judges. Dominicus Carter concurrently served as a probate judge and first counselor or acting president of Utah Stake from 1856 to approximately 1859. John Taylor who presided over the court from approximately 1868 to 1870, was highest in the Mormon hierarchy. During the period Taylor served as judge he was also an apostle in the church. Only Zerubabbel Snow, judge from 1863 to approximately 1866, and former territorial associate supreme court and district court justice, although a Mormon, did not hold a similar ecclesiastical office. In other words, during all but three of the twenty-two years in which the probate courts held their unusual powers, judgments were rendered by judges who held positions of leadership in the Mormon church.

Mormons also held a high percentage of grand, civil petit, and criminal petit juror positions. From the following table, it is apparent that in all years analyzed, juror positions were monopolized by Mormons.

That 95 percent of the jurors were Mormon during 1855 and 1860 is not surprising, given the fact that the population was probably at least proportionately represented. Even as late as 1867, inroads made by Gentile soldiers, merchants, and miners boosted the non-Mormon population to only 7 percent. When compared to this figure, the proportion of Mormons sitting on juries in 1865 represented less than the corresponding Mormon share of the population. However, Mormons occupied 100 percent of juror positions in 1870, a figure well above even the 1874 Mormon population estimate of 83 percent.

The preceding information, therefore, may shed some light upon the question of whether there existed a vehicle by which Mormons, if they so elected, could inflict injustice upon litigants who did not share their religious convictions. Most significantly, these data suggest that Mormons, because they monopolized judgeships and juror positions, held sufficient collective power to control the outcome of court proceedings.

Whether this resource of judicial power was tapped may find partial answer in an examination of certain procedural aspects of the probate court's operation. One perspective of judicial procedure is an analysis of the relative percentages of Mormons and non-Mormons who contested each other in civil disputes. Such a study is relevant because litigants could elect to file complaints before a Mormon probate judge or before a non-Mormon district court judge.

Therefore, if Mormon plaintiffs when computed as a percentage of the total plaintiffs in civil suits where Mormons and non-Mormons were opposed are found to exceed the estimated percentage of Mormons in the population, an eagerness on the part of church members or a reluctance by non-Mormons to take their disputes to reputedly biased probate courts may be indicated. Conversely, statistics demonstrating that the percentage of non-Mormons in relation to the non-Mormon population filed an equal or greater percentage of civil complaints possibly suggests that the court had no such reputation for prejudicial treatment of Gentiles and that non-Mormons were essentially confident of receiving a fair hearing.

The following table applies this criterion to civil cases filed before the Utah County Probate Court. Although small sample sizes for individual periods qualify conclusions drawn from the data, this computation reveals that for the first three periods analyzed, the actual number of non- Mormons filing suit exceeded the number of Mormon complainants. Thus, the percentage of non-Mormons suing Mormons is significantly greater than the corresponding percentage of non-Mormon population: 73 percent of the plaintiffs were not Mormon church members, while even as late as 1874 only 17 percent of the population was non-Mormon.

From these statistics it is possible to conclude that the court did not entertain a disproportionately high number of complaints filed by church members. Additionally, the fact that a significant number of non- Mormons took their grievances to probate court possibly suggests that the courts were not necessarily notorious for favoring Mormons over the non-Mormons who appeared before them. However, it is also conceivable that Mormons were generally less litigious than non-Mormons. The Saints had been counselled by church leaders to stay out of the courts. Brigham Young denounced public lawsuits in the strongest terms: "What comes of litigation? Poverty and degradation to any community that will encourage it."

An examination of the number of criminal actions filed and tried for each category of defendant presents a somewhat different characterization of the court. Compared to the distribution of population, the following data show that a higher proportion of non-Mormons than Mormons were indicted and brought to trial for criminal offenses. 29 That is, non-Mormons, who as late as 1874 comprised 17 percent of the population, accounted for 40 percent of the total ninety defendants indicted and 42 percent of the total sixty-six defendants tried. Although one interpretation of such findings may be that the non-Mormons were generally more lawless than Mormons, another feasible explanation is that non-Mormon criminal offenders were more diligently pursued than were Mormons or were even harassed by law enforcement officials and the courts. Or, perhaps certain territorial criminal statutes were discriminatory against non-Mormons.

Although non-Mormons were indicted and tried for a significant share of the criminal violations, they were not accused of the more serious crimes in higher incidence than were their Mormon counterparts. The subclassification of criminal cases as felonies and misdemeanors shows that indictments for felonies comprised essentially equivalent percentages of all indictments delivered against both Mormons and non- Mormons; non-Mormons accused of felonies constituted 25 percent of the thirty-six non-Mormons indicted; Mormons charged with felonies were 26 percent of the fifty-four Mormons indicted. Similarly, Mormons and non-Mormons were both tried for felonies in roughly the same incidence: Mormons tried for felonies constituted 32 percent of the Mormon defendants named in criminal actions; non-Mormons tried for felonies comprised 29 percent of the twenty-eight non-Mormons tried.

However, data indicating that Mormons were granted bail more frequently than non-Mormons may suggest possible bias. For those years in which bail was consistently recorded, bond was granted in 65 percent of the total twenty cases where Mormons were defendants, yet in only 33 percent of the total eighteen criminal actions filed against non- Mormons.

Additional evidence that Mormons were treated more leniently by the courts possibly would be produced by a comparative analysis of pleas registered in criminal cases. Documentation that Mormons pled not guilty in higher incidence than non-Mormons might suggest that Mormons by pleading such also registered their expectations for a ruling in their favor. However, the following tabulation which shows that proportionately fewer Mormons than non-Mormons chose to plead not guilty may indicate that Mormon litigants did not anticipate particularly favorable treatment at the hands of Mormon judges and juries.

An alternate explanation of the above data may be that Mormons pled guilty in higher incidence than non-Mormons because they subscribed to a theology that required confession and reparation. Particularly if Mormons perceived the Mormon-operated probate court as an extension of the ecclesiastical system of the church, they may have pled guilty to meet their religious obligation for repentance.

As a final observation it may be noted that a judge who was partial to fellow church members possibly would dismiss a higher percentage of actions brought against Mormons than non-Mormons. However, only slightly more criminal cases involving Mormons were dismissed: actions were dropped against 9 percent, or five of the fifty-four Mormons, and 6 percent, or two of the thirty-six non-Mormons indicted. Neither were dismissals of civil complaints an apparent instrument of discrimination. Only a single case, one in which a non-Mormon brought suit against a Mormon, was dismissed.

Summarized, the findings of this examination of procedural operations of the probate court neither totally refute nor substantiate the charge that non-Mormons were the target of partisanship. On the one hand, certain data, such as those demonstrating that proportionately more non-Mormons than Mormons were indicted and brought to trial for crimes and that Mormons were granted bail in higher incidence than were non-Mormons, may sustain the accusations of the probate court's critics. Yet, supporting the argument that the court's operations were evenhanded are statistics indicating non-Mormons were not accused of the more serious criminal offenses more regularly than were Mormons. That criminal indictments against Mormons were not more frequently dismissed also suggests that the courts treated Mormons and non- Mormons with impartiality. However, other possible inferences drawn from the balance of the data are less conclusive. Calculations demonstrating that more non-Mormons than Mormons elected to take their civil disputes to the probate courts may suggest either that non-Mormons expected a fair hearing of their grievances or that Mormons avoided litigation and possibly sought alternative remedies to disputes in which they were a party. That fewer Mormons than non-Mormons filed not guilty pleas in criminal cases possibly indicates that Mormons did not expect the court to rule routinely in their favor or that they felt compelled to confess their guilt before the court.

The nonprocedural decisions and final judgments rendered by judges and juries also serve as possible indicators of whether or not probate courts waged a judicial campaign against Gentiles. For example, the following data, which classify decisions of tried civil cases as pro- Mormon or not, appear to indicate that a litigant's membership or nonmembership in the Mormon church was not a controlling factor in the court's ruling. If anything, this information suggests that the probate judges favored the plaintiff over the defendant regardless of his church membership. Of course, it can be argued that the individual bringing the suit would most often win his case because he probably had a credible complaint before approaching the court.

4 10An examination of the judges' rulings in criminal cases is equally informative. The figures indicate that judges did not acquit a greater proportion of Mormons of crimes than non-Mormons. In fact, the reverse was true: non-Mormons were freed more frequently than Mormons.

Jurors apparently were even more lenient toward non-Mormons than judges. Jurors acquitted of criminal charges a significantly greater proportion of non-Mormons than Mormons. A possible explanation may be found by recalling that non-Mormons were more regularly indicted and tried than Mormons — conceivably because the community regarded Gentiles with a higher degree of suspicion than they did fellow Saints. The high number of non-Mormons acquitted may indicate that the courts set free non-Mormons who had been turned over to the courts on the basis of unsupported charges.


That decisions of the probate courts were impartial possibly may be deduced from evidence that non-Mormons and Mormons were convicted of the more serious offense of felony in roughly the same incidence. This study found convictions for felony comprised 19 percent of the combined misdemeanor and felony convictions for each category of defendant.

An analysis of the difference between monetary settlements demanded and awarded in civil cases also provides a possible measure of the court's fairness. One may expect a court biased against non-Mormons to refuse non-Mormon demands of compensation for damages, debt claims, etc. However, of the total twenty-three civil cases that resulted in monetary awards to either non-Mormon or Mormon complainant, only three were for amounts less than that requested. Only one of these three grants involved a case in which a non-Mormon was the plaintiff.

An assessment of the harshness of prison sentences or fines imposed by the court is a more difficult exercise. Because only scant details of the cases survive, it is impossible to identify like cases that may or may not have resulted in like punishments. Nonetheless, that the courts did not discriminate against non-Mormons perhaps can be derived from evidence showing that within general categories of offenses, fines and sentences were essentially the same for the two classes of defendants. For example, a typical fine assessed both Mormons and non-Mormons convicted of larceny was $100. The normal range of fines levied Mormons and non- Mormons convicted of riot was $5 to $25. The one Mormon and two non-Mormons found guilty of committing grand larceny were sentenced to twenty-four months at hard labor in the penitentiary.

The foregoing analysis of decisions and rulings rendered by judges and juries produces a rather clear pattern of impartial treatment of non- Mormons by the probate court. An important indicator of possible bias —the decision ratio—which shows that plaintiffs were routinely favored over defendants, remains stable and consistent for the various combinations of litigants involved in civil disputes. Additionally, non-Mormons were not more regularly convicted of crimes than Mormons, neither were they found guilty of more serious offenses. Finally, statistics pertaining to monetary awards granted in civil disputes indicate that both non- Mormon and Mormon complainants who won their cases received the compensation they had requested.


The inferences and conclusions proposed by the preceding analyses do not add up to proof that between 1855 and 1872 the judges and juries of the Utah County Probate Court manipulated judicial proceedings and therefore worked a dual brand of justice upon those who pled their cases before them. An examination of court functionaries verifies that Mormons, by virtue of their domination of judgeships and juror positions, and possibly the Mormon church, by virtue of its hold on the Saints, could have regulated court proceedings. However, analyses of selected procedural elements of the court's operation are not persuasive as evidence that such potential powers were in fact exercised. For instance, that the court was biased against Gentiles may be indicated by data describing bail awards and relative percentages of Mormons and non- Mormons indicted and tried for crimes. Yet, a review of criminal cases dismissed and a study of the seriousness of accusations filed against Mormons and non-Mormons indicted and tried for criminal offenses conceivably support the theory that the court treated Mormons and non- Mormons with equality.

Provided by the last section of this study, an analysis of nonprocedural decisions and final judgments rendered by the court is the strongest evidence that probate judges and jurors fairly administered the law to both Mormons and non-Mormons. Classifications of decisions in tried civil and criminal cases as favoring Mormons or non-Mormons do not show that Mormons were accorded greater leniency than were their counterparts. Assessments of the incidence of convictions for felony, monetary awards in civil cases, and the harshness of punishments in criminal cases fail to confirm claims that court rulings against non- Mormons were usually severe.

Thus, the true basis for the accusations cast at the probate courts and the Mormons necessarily rests upon extradocumentary evidence, not upon the records reflecting the actual quality of justice delivered by Utah probate judges and jurors. One source of conflict may have been the district judges' distress at having their powers assumed by inferior courts or their aggravation at being deprived actual business and fees. Perhaps the conflict erupted as it did because of the attachment of the issue of the courts' unusual jurisdiction to the emotionally volatile controversy surrounding the practice of polygamy.

More realistically, though, what began as an efficient plan to meet pressing needs and exigencies developed into a symbol of the political struggle between Mormons and federal officials that prevailed throughout the latter half of the nineteenth century. To Mormons the probate court system stood for their cherished desire for autonomy and home rule. To federal officials the probate courts represented the pervasive political dominion of the polygamous Mormon church — a barbarous and subversive power they were convinced must be eradicated.

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